In construction contracts, it is natural for the project’s initial planning to face unexpected changes during contractual execution, such as scope modifications, cost variations, delays in the supply chain, or extreme weather conditions. In fact, what was predictable at the contracting stage does not always hold true during execution. And it is precisely here that claims arise — formal requests for rebalancing, schedule extensions, or financial compensation, as previously mentioned in our earlier article.
However, not every claim is legitimate. And the contractor or the client do not always provide the elements necessary to substantiate it. A poorly formulated claim can be costly. Therefore, both the party submitting the claim and the party defending against it must understand that a claim is, above all, a technical and legal argumentative process that requires method, clarity, and evidence.
A well-constructed claim is based on a structured narrative, solid documentation, and logical reasoning. For that reason, it is recommended that it contain some basic elements:
(i) What was initially planned?
Here, the claiming party must present the scenario defined in the contract, schedule, or scope documents, indicating what was planned in relation to deadlines, activities, and responsibilities — objectively — and where this is documented.
(ii) What actually happened?
The discrepancy between what was planned and what occurred must be demonstrated with concrete records such as daily construction logs, formal communications, meeting minutes, photos, progress reports, notices, etc. Without these, the claim is weakened even before it is analyzed.
(iii) What were the impacts?
It is necessary to demonstrate how and to what extent the event altered the project’s progress — whether in schedule, cost, or both. The methodology used to determine damages must be clear, objective, and tied to project records. It must also show the causal link between the event and its resulting consequences.
(iv) Who is responsible for what happened?
The claiming party must demonstrate that responsibility for the deviation is not theirs, or that the risk had been allocated to the other party. This can be shown through the contract’s risk allocation, the responsibility matrix defined between the parties, the applicable legislation, or even judicial and arbitral precedents.
(v) What is being requested?
Finally, a good claim is one that makes a viable request within contractual limits — whether a time extension, a scope revision, additional payment, or contractual rebalancing. The request must be consistent with the facts described and the impacts demonstrated.
And how can the responding party defend itself?
It is important that the responding party address each of the items above, if it has elements to do so, and formulate its defense with the same degree of robustness, considering the following questions: did the event reported by the claiming party actually occur? Are there any documents that prove or are against what was alleged? Did the claiming party truly meet its burden of demonstrating the facts? Did the alleged impact actually happened? From this, it can build an organized and coherent defensive structure.
As can be seen, the preparation of claims in construction contracts requires organization, substantiation, and clarity. When a request is made without following a logical structure — one that links what was planned to what occurred, identifies responsibilities, and quantifies impacts based on technical and legal documentation — the chances of success are reduced.
And this is where the legal team must act preventively, guiding the technical team in building a well-documented, consistent, and defensible project history. This prevents unnecessary conflicts and strengthens the company’s position should the matter evolve into a more complex negotiation or an arbitral proceeding.
